Issue Date: August 20, 2007
Patents Are Not Monopolies
"Weighing Obviousness" provides a nice overview of a recent U.S. Supreme Court decision as well as relevant context and possible consequences of such decision (C&EN, June 11, page 26). Unfortunately, the same article characterizes a patent as a monopoly, a characterization that may be misinterpreted by those not versed in patent law.
Article I, Section 8 of the U.S. Constitution grants inventors the exclusive rights to their discoveries for limited times in exchange for the eventual surrender to society of their patented intellectual property. It is as wrong to say that the limited right to exclude is a "monopoly" as it is to say that the surrender to society of the associated intellectual property is "socialist confiscation."
A monopoly is a license or privilege allowed or enforced by the government for the sole buying, selling, making, working, or using of anything whatsoever subject to such license or privilege, where the people are restrained from the liberty of manufacturing or trading that they would have in the absence of such license or privilege. Patent rights are not monopoly rights for several reasons.
First, a monopoly prevents a person from doing or freely accessing something that is part of the public domain. In contrast, patent rights are granted for inventions or discoveries that are new and nonobvious and thus not part of the public domain. So patent rights do not take from the people anything that was already in possession of the people, as monopolies do.
Second, patent rights are traded for the full, enabled disclosure of the patented invention that is for the people to freely practice upon termination of the limited exclusive right. Monopolies are not subject to such quid pro quo.
Third, the monopolist controls and rules the market. In contrast, the patentee has only a limited right to exclude others from practicing the patented invention, and market forces determine to a large extent the market value of the patented invention or discovery. In fact, the vast majority of issued patents have negligible or no market value at all.
Fourth, a monopoly gives the monopolist rights to make, sell, buy, work, or use that may not be had by others. Patent rights are not rights to do any of such activities, but they are confined to temporarily exclude others from pursuing certain activities concerning the patented invention or discovery.
Finally, there is no way of designing around a monopoly. Quite the contrary, one of the benefits of the patent system is precisely to encourage and motivate other inventors to design around the patented invention or discovery, thus intensifying technological advancement beyond that provided by the patentee.
Neither inventors nor patentees are monopolists. They and society in general rely on the patent system that originates with the U.S. Constitution, benefit from the patent incentives for investment in new technologies, and also benefit from the widespread and enabled disclosure of such new technologies for everybody to freely practice when the patent rights end.
Jesús Joanós i Timoneda
San Diego, Calif.
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